2017-��AT-721

��AT Held or ��DT Pronouncements

��AT considered an appeal by the Secretary-General. ��AT held that ��DT erred in finding that the Administration had failed to provide a performance-related justification for its decision not to renew Mr Ncube��s fixed-term appointment. ��AT held that the decision not to renew Mr Ncube��s appointment had to be upheld despite the fact that his e-PAS suffered from procedural irregularities as it did not consider that the flaws rendered the appraisal unlawful or unreasonable. ��AT considered that the decision not to renew the appointment was justified because the Secretary-General proved that the overall evaluation of Mr Ncube of ��does not meet expectations�� was not arbitrary but, rather, objective, fair and well-grounded, and his due process rights were fully respected within the evaluation process. ��AT held that the witnesses who testified that Mr Ncube was underperforming were credible and that the testimonies of Mr Ncube and another witness who was a colleague and friend did not cast doubt on the 2012 appraisal. In addition, ��AT held that Mr Ncube was informed of his performance shortcomings, was given ample opportunity to improve and his due process rights were respected. ��AT held that there was a performance-related justification for not renewing Mr Ncube��s appointment, the impugned decision was lawful and ��DT made an error of law in concluding otherwise and rescinding the non-renewal decision. ��AT held that there could be no order of in-lieu compensation and there was no basis to award compensation for moral injury. ��AT upheld the appeal and reversed the ��DT judgment.

Decision Contested or Judgment/Order Appealed

The Applicant contested the decision to separate him from service on grounds of unsatisfactory performance. ��DT found that the non-renewal decision was unlawful and awarded compensation.

Legal Principle(s)

A fixed-term appointment does not carry any expectancy, legal or otherwise, of renewal or conversion, irrespective of the length of service. To justify a decision based on poor performance, it is not sufficient to give informal feedback to the staff member.

Outcome

Appeal granted

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The judgment summaries were generally prepared in English. They were translated into French and are being reviewed for accuracy of the translation.

Applicants/Appellants

Ncube

Entity

Case Number(s)

Tribunal

Registry

Date of Judgement